The government chose to advertise the entry into force of the Human Rights Act 1998 by suggesting that people should know about it, but were unlikely to need it in practice. This wishful thinking captures perfectly the dilemma any government faces when promoting a legal instrument that is likely to be used against it.
The Human Rights Act has generated a substantial amount of interest and publications. There is now a range of books, written primarily for legal practitioners (and very often by legal practitioners). These have a purely instrumental value and significance and vary considerably in quality. Francesca Klug’s aim is related. It is to raise the profile of the Human Rights Act by providing an accessible and lively introduction to human rights law and politics. She largely achieves this objective and has managed to convey the importance of the changes in a way that will appeal to a general audience.
Her book is written in the style of much contemporary journalism, and she clearly hopes that her enthusiasm for the changes will shine through. Given the proliferation of human rights norms, it is hard to refute her argument that the time of human rights has arrived. As evidence for this, she cites the cases of Kosovo and of General Pinochet. These are not the best examples, but she insists on making grand claims in both instances. On the Pinochet case, perhaps international human rights lawyers need to talk to those who work in the area of criminal justice at the national level. When they do, and reflect on what they learn, they may come to revise their views on the case and its "historic" significance. Klug’s thoughts on Kosovo are equally questionable, but her point is clear: human rights discourse is everywhere and can justify numerous actions. The vision of human rights presented is intended to replace utopian thinking of the past, evident from the ambitious title of this book. But what is missing from this new vision is clarity. Human rights discourse is surprisingly indeterminate for a tool that is supposed to deliver us into a new age of humanism.
Disagreement on rights is everywhere, and in this context hard questions need to be addressed. The one that troubles me is who we want to have the last word in our social conversation. On this the Human Rights Act appears to have struck the correct balance between existing mechanisms of protection. Human rights lawyers are moving away from simple-minded approaches that glorify the judicial role, and this is a welcome development. The challenge in the years to come will be to learn from others how enforcement and regulation in the human rights sphere can be made to work. At the heart of all this is, of course, continuing political struggle.
Human rights developments are presented in the form of three waves: liberty, community and mutuality. The most interesting one is mutuality. On this, Klug shows signs of hard thinking about the evolution of rights discourse. For example, she refers to the importance of dialogue in the development of human rights law. In addition, she is not wedded to the judiciary in a way that some simplistic human rights work is and recognises the importance of other mechanisms. Her support for the republican tradition in constitutional law (she is keen on Thomas Paine) should, of course, lead her in this direction automatically. She is aware of political and cultural contexts and again demonstrates a knowledge of more sophisticated approaches to human rights. Much ground is covered in this work, and I found the argument about different waves of rights reasonably persuasive. She manages to express difficult ideas in a comprehensible way - an achievement in itself.
If there is a problem with the book, it is the assumption that everyone who does not agree with her is basically unreasonable. If you believe in progressive politics you must agree, surely? This, of course, avoids the trouble of having to make a coherent argument. It is worth stating that reasonable people disagree about the meaning of rights, and even about whether human rights are the way to conceptualise legal and social relations. There are some powerful intellectual figures behind these arguments, and it is unwise to caricature them, as Klug sometimes does. Karl Marx, for example, had a rather more complicated understanding of rights than Klug would have you believe. If she is prepared to trust dialogue, she must try to convince us of the merits of her argument and not assume that we should just see how important this all is. To be fair, though, she does try to deal with selected, critical literature.
The Human Rights Act 1998 will have a substantial impact on legal practice. This book covers considerable ground and offers a clear and provocative introduction to the politics of human rights law. It also includes serious thinking on human rights. It is thus a much more reflective contribution than some of the works on offer. It should attract a wide readership and stir further discussion, thus assisting in the promotional aims the author intends for it.
Colin Harvey is professor of constitutional and human rights law, department of law, University of Leeds.
Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights
Author - Francesca Klug and Helena Kennedy
ISBN - 0 14 026678 X
Publisher - Pengiun
Price - £7.99
Pages - 282